Privacy Policy

TERMS OF USE OF THIS WEBSITE

By using the Mixedmeans web site, you agree to be bound by these terms of use and also to the provisions of our Privacy Policy.

If you decide to join Mixedmeans, you will be required to agree to other terms and conditions for supply of Mixedmeans web hosting and other services.

Mixedmeans reserves the right at any time to change or add to this web site, including these terms of use.

The laws of Victoria govern the operation of this web site and you agree to submit to the non-exclusive jurisdiction of the courts of Victoria.

If any provision of these terms is found to be invalid or unenforceable by a court of law, such invalidity or unenforceability will not affect the remainder of the terms of use which will continue in full force and effect.
2. Disclaimer

The information on this web site is provided in good faith and Mixedmeans believes it to be accurate. However, if you wish to obtain services from Mixedmeans, you should not rely solely on the information in this web site but should make specific enquiry concerning the nature of the services and their suitability for the use to which they will be put. Unless stated otherwise, all information on this web site is supplied without any warranty, condition or other term as to the quality of any services or their suitability for any particular purpose.

Mixedmeans is not liable to you or anyone else for any loss of income, profit, business contracts or goodwill or any indirect or financial loss suffered whether arising in contract, negligence or otherwise arising in connection with use of this web site.

To the extent permitted by law, Mixedmeanss liability for breach of any implied warranty or condition which cannot be excluded is limited to the supply of the services again or the payment of the cost of having services supplied again.
3. Copyright

This web site is the copyright property of Mixedmeans. You may download, display, print and reproduce this material in unaltered form only (retaining this notice) for your personal, non-commercial use. Apart from any use as permitted under the Copyright Act 1968, you may not, in any form or by any means:

* adapt, reproduce, store, distribute, transmit, print, display, perform, publish or create derivative works from any part of this web site; or
* commercialise any information, products or services obtained from any part of this web site,

without the written permission of Mixedmeans.
4. Trade Marks

This web site contains trade marks of Mixedmeans. No licence, interest or right to or in any such trade marks of Mixedmeans is granted to or conferred upon you. Any reproduction or use of any of the content on this site, without the express written consent of Mixedmeans or unless expressly authorised by law, is prohibited.

If you use any of Mixedmeanss trade marks to refer to our activities, products or services, you must include a statement attributing those trade marks to us. You must not use any of our trade marks:

* in or as the whole or part of your own trade marks;
* in connection with activities, products or services which are not ours;
* in a manner which may be confusing, misleading or deceptive; or
* in a manner that disparages us or our information, products or services.

5. Linked Web Sites

This web site may contain links to other web sites. Those links are provided for convenience only and may not remain current or be maintained.

Links to those web sites should not be construed as any endorsement, approval, recommendation or preference by us of the owners or operators of those web sites, or for any information, products or services referred to on those other web sites.

Unless stated otherwise, we have:

* no relationship with the owners or operators of those linked web sites; and
* no control over or rights in those linked web sites.

You link to any such web site entirely at your own risk.

Any party seeking to link to this site either directly or from within a frameset must first seek consent from Mixedmeans.
6. User Licence to Mixedmeans

By placing or sending any information or other material to Mixedmeans (including posting messages, uploading files, inputting data or engaging in any other form of communication) you grant to Mixedmeans a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted worldwide licence to do the following in respect of the information or material:

* use, copy, sublicence, redistribute, adapt, transmit, publish and/or broadcast, publicly perform or display; and
* sublicence to any third parties the unrestricted right to exercise any of the foregoing rights granted.

The foregoing grant includes the right to exploit all proprietary rights in any such information or other material including but not limited to rights under copyright, trade mark or patent laws under any jurisdiction worldwide.You expressly waive in favour of Mixedmeans and any other party authorised by Mixedmeans all moral rights and any similar rights in any jurisdiction which you may have or hereafter acquire in respect of any relevant communication or other material.

WEB HOSTING AGREEMENT

This Hosting Agreement (the “Agreement”) governs your purchase and use, in any manner, of all hosting services ordered by you (“the Customer”) and accepted by Mixedmeans, trading as Mixedmeans. The hosting services subject to this Agreement are any services, other than domain name services, purchased on the Mixedmeans web site by you during the ordering process (collectively, the “Services”). The available Service Options are located at http://www.Mixedmeans.com.au/ This Agreement describes the terms and conditions that apply to such purchase and use of the Services. You must accept the terms of this Agreement to use the Services.

By checking the box that says “I have read and accepted the terms of service” and registering for and using the Services, you acknowledge that you have read this Agreement and agree to be bound by the terms and conditions contained herein as well as all policies and guidelines incorporated by reference. If you do not agree to the terms of this agreement or any modification, do not check the box and do not continue to use the services.

1 HOSTING SERVICES

1.1 The Customer has ordered, and Mixedmeans agrees to provide (upon acceptance of the Customer’s purchase request), the Services pursuant to the Service Options selected by the Customer. As part of the Services, Mixedmeans will configure, install, house, maintain, upgrade, monitor, modify and operate the computer equipment, server(s), operating software, network equipment and components (collectively, “Mixedmeans Systems”) as necessary to host and serve the Customer’s Content (as defined below) via the Internet in accordance with the Service Options. The Customer acknowledges that, as a part of Mixedmeans Systems, Mixedmeans may retain one or more third-party service providers to supply the necessary facilities, equipment, and connectivity to provide the Services hereunder. Subject to the specific terms of this Agreement, Mixedmeans retains sole right and control over the programming, content and conduct on Mixedmeans Systems. The Customer is responsible for securing and maintaining its own Internet connectivity to access Mixedmeans Systems.

1.2 Domain Name Services

1.2.1 At the election of the Customer and in accordance with the Service Options selected by the Customer, Mixedmeans may provide domain name services, including the hosting of one domain name held by the Customer (or more than one domain name where a multiple domain name hosting package is ordered) (“DNS Services”) as part of the Services. If the Customer enters into the separate agreement governing the provision of domain names to the Customer (“the Domain Agreement”), the Customer shall provide Mixedmeans with one registered domain name (or more than one registered domain names where a multiple domain name hosting package is ordered) (each registered domain name, for the purposes of the Agreement, a “Customer Domain”). Mixedmeans shall host the Customer Domain(s) during the effective term of this Agreement (provided that such domain does not violate any of our Policies http://www.Mixedmeans.com.au/legal/policies.html , or any laws or regulations, Mixedmeans agrees to permit the transfer of the Customer Domain at the direction of the Customer, upon termination of this Agreement, or otherwise in accordance with the Domain Agreement.

1.2.2 Any Customer Domain shall be hosted and administered in accordance with terms of the Domain Agreement (which can be found here http://www.Mixedmeans.com.au/legal/policies.html).

1.2.3 Mixedmeans may assign IP addresses to the Customer as part of the Services. Any IP addresses or other network numbers assigned to the Customer by Mixedmeans are and shall remain the property of Mixedmeans. If the Customer terminates this Agreement or Mixedmeans ceases to provide domain name services, Mixedmeans may, in its sole discretion, reassign or reuse the IP addresses. Mixedmeans has sole discretion as to the Internet routing of any Mixedmeans network numbers. Upon termination, Mixedmeans will not have, and the Customer hereby releases Mixedmeans from, any responsibility or liability for any actions or costs related to the reassignment or reconfiguration of the Customer’s system for any new IP addresses.

1.3 Mixedmeans shall use commercially reasonable efforts to make Mixedmeans Systems and the Service available 99.9% of the time (the “Uptime Goal”). The Uptime Goal shall be measured within Mixedmeans System on a monthly basis calculated to include 24 hours per day over each month, but excluding from the numerator and denominator in the calculation the duration in time of any temporary shutdowns due to scheduled maintenance (which will not exceed in the aggregate 5 hours per month), telecommunications or power disruptions caused by third parties, and any other causes beyond Mixedmeans reasonable control. Any failure of Mixedmeans to satisfy the Uptime Goal shall not constitute a breach of this Agreement. The Customer further acknowledges and agrees that its sole and exclusive remedy for any failure of Mixedmeans to provide the services in accordance with the uptime goal is to terminate this Agreement pursuant to section 5.1.

1.4 If the Customer uses any bandwidth or storage space in excess of the Service Options, Mixedmeans may, in its sole discretion, assess the Customer with additional charges, suspend the performance of the Services, or terminate this Agreement. In the event that Mixedmeans elects to take any corrective action, the Customer shall not be entitled to a refund of any unused pre-paid fees. The Customer’s use of the Services and access to it is the Customer’s responsibility. The Customer is responsible for any unauthorised access to the Services resulting in bandwidth and/or storage usage exceeding the limits in the Order Form and resultant charges. Should shared server Customers exceed the specified limits, Mixedmeans will ask them to upgrade to a larger plan or purchase additional bandwidth or storage space.

1.5 Mixedmeans reserves the right to change or modify the Services, any Service Options, the terms and conditions of this Agreement, or any policy or guideline applicable to the Services, at any time in its sole discretion. Mixedmeans will send a notice to the Customer of any such changes and will post a notice of such changes on Mixedmeans web site http://www.mixedmeans.com.au/. Changes to this Agreement or Service Options will be effective 15 days after the notice is posted. Changes to any policy or guidelines governing the Services, including the Acceptable Use Policy, shall be effective upon posting to the Mixedmeans site. The Acceptable use Policy forms part of this Agreement. If the Customer does not agree to any change to this Agreement, the Service Options, or any governing policy or guideline, the Customer’s sole remedy is to immediately terminate this Agreement pursuant to Section 5 (notwithstanding any notice period). The Customer’s continued use of the Services following Mixedmeans posting of any changes to this Agreement, the Service Options, or any policy or guideline will constitute the Customer’s acceptance of such changes or modifications.

1.6 The Customer may change Service Options under the Agreement with appropriate prior notice.

2
VIRUS PROTECTION SOFTWARE/ANTI SPAM SOFTWARE

2.1 A virus protection service (“AntiVirus Service”) is available to selected plans ordered on the Mixedmeans web site from 01/08/2004 onwards (“New Servers”)

2.2 A spam filtering service (“AntiSpam Service”) is available to selected plans ordered on New Servers.

2.3 The AntiVirus Service and the AntiSpam Service (together, “AntiSpam/AntiVirus Services:” are not available to Customers on hosting plans other than the New Servers. (“Old Servers”) Customers who are on Old Servers who wish to have access to either or both of the Virus Service and Spam Service may request a priority transfer by Mixedmeans from the Old Servers to a New Servers. Fees will apply.

2.4 The Customer acknowledges that no anti-virus software can guarantee to detect 100% of viruses, and that no anti-spam software can guarantee to be 100% accurate in its filtering of spam, and accepts use of the AntiSpam/AntiVirus Services at their own risk.

2.5 Mixedmeans reserves the right to remove attachments from incoming email messages if there is any indication that the attachment is, or might be, infected with a virus.

2.6 The Customer acknowledge that Mixedmeans cannot and does not warrant that the AntiSpam/AntiVirus Services installed on Mixedmeans servers will detect all viruses present in e-mails scanned by and transmitted via Mixedmeans servers.

2.7 Mixedmeans makes no warranty that the AntiSpam/AntiVirus Services will be error free or free from interruption of failure.

2.8 Mixedmeans expressly disclaims any express or implied warranty regarding system and/or the AntiSpam/AntiVirus Services availability, accessibility, or performance.

2.9 The AntiSpam/AntiVirus Services provide a high level of protection against viruses but the Customer acknowledges and agrees that it is solely responsible for protecting its property and email accounts from virus threats hacking or website ‘hijacking’.

2.10 Mixedmeans offers no guarantee that the AntiSpam/AntiVirus Services will capture all unwanted email sent to the Customer, nor that all wanted email will be passed through the filter.

2.11 The Customer acknowledges that some email may be made unavailable when using the AntiSpam/AntiVirus Software, and by requesting to use the filter the Customer assumes all liability for any lost or altered email.

2.12 By choosing to use the AntiSpam/AntiVirus Software, the Customer agrees to hold Mixedmeans faultless for any damages resulting from the use of the filtering service.

2.13 The software installed on Mixedmeans servers minimises the risk of receiving SPAM and viruses through email delivered via Mixedmeans servers only and does not mean a computer will not be affected by a virus. Mixedmeans recommends that Customers also have Anti-virus programs for extra protection for viruses that may arrive through the Customers use of CD-ROM’s, floppy disks, downloads or any other means.

2.14 The Customer waives any claims against Mixedmeans in connection with access to or use of the AntiSpam/AntiVirus Services installed on Mixedmeans servers, including without limitation any claims based upon the deletion, misdirection or delay of emails and loss of, damage to, records or data. Due to the volatile nature of the Internet and its offerings, the accuracy of the performance of the AntiSpam/AntiVirus Services is not guaranteed by the supplier of the Software, nor is it guaranteed by Mixedmeans.

2.15 Email transmitted from Mixedmeans servers will not be scanned by the AntiSpam/AntiVirus Services until the Customer has indicated its willingness to utilise these services by activating the AntiSpam/AntiVirus Services via its web hosting account Client Control Panel.

3
THE CUSTOMER CONTENT; ACCEPTABLE USE

3.1
Customer Content

3.1.1 The Customer hereby grants Mixedmeans a limited, non-exclusive, royalty-free, non-sublicensable license to host, reproduce, transmit, cache, store, exhibit, publish, display, distribute, perform, edit, adapt, modify, create derivative works from, and otherwise use the Customer Content solely as necessary to provide the Services for the Customer. “Customer Content” means all materials, code, data, text (whether or not perceptible by users), metatags, multimedia information (including, but not limited to sound, data, audio, video, graphics, photographs, or artwork), the Customer Domain(s), e-mail, chat room content, bulletin board postings, or any other items or materials of the Customer or any third party that are provided or permitted by the Customer to reside on Mixedmeans Systems. The Customer owns all copyright in the Customer Content within the scope of the Copyright Act 1968 (Cth).

3.1.2 The Customer shall be solely responsible for all Customer Content, including, without limitation, any content or materials of a third party that the Customer permits or enables to be posted onto or through Mixedmeans Systems. Subject to the terms of this Agreement, the Customer shall (a) be solely responsible for the creation, posting, updating and maintenance of the Customer Content; and (b) manage, renew, create, delete, edit, maintaining and otherwise control the editorial content of the Customer Content. Mixedmeans will not be responsible for reviewing the Customer Content prior to its posting by the Customer. Mixedmeans will not be responsible for keeping and maintaining a current version of the Customer Content. The Customer shall be entirely responsible for obtaining any insurance in relation to any loss or damage caused to the Customer Content, or any other of the Customer’s data held in Mixedmeans Systems.

3.1.3 The Customer is responsible for ensuring that the Customer Content will be “server ready” and otherwise remains fully compatible with Mixedmeans Systems (including all software and operating systems). The Customer acknowledges that it is responsible for having the necessary knowledge and expertise to maintain the Customer Content on Mixedmeans Systems. Mixedmeans reserves the right to remove any the Customer Content that is not compatible with Mixedmeans Systems. Upon request from the Customer, and at the Customer’s sole expense, Mixedmeans may assist the Customer in resolving any compatibility problems on a time and materials basis.

3.2
Acceptable Use

3.2.1 The Customer shall at all times adhere to all applicable laws, rules and regulations and to Mixedmeans then current Acceptable Use Policy as set out herein as Schedule A. Any breach of this Policy by the Customer will entitle Mixedmeans to elect to terminate this Agreement, without notice to the Customer.

3.2.2 Mixedmeans may inspect the Customer Content or investigate any alleged violation of this Agreement, Mixedmeans policies or any third-party complaints. Mixedmeans will not access or review the contents of any e-mail or other stored electronic communications except as required or permitted by applicable law or legal process. In the event that Mixedmeans determines in its sole and reasonable discretion that any the Customer Content or conduct or actions of the Customer (including its employees and users) are objectionable, unlawful, potentially infringing or otherwise violate this Agreement, the Acceptable Use Policy, or other applicable policy, Mixedmeans may take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, the Customers and/or third parties. Such corrective action includes, but is not limited to: (a) issuing a warning; (b) immediately suspending or terminating the Services; (c) restricting or prohibiting access to any the Customer Content that is objectionable or otherwise violates this Agreement or applicable policy; and/or (d) disabling or removing hypertext links, the Customer Content or the content of any third party from Mixedmeans Systems. In the event Mixedmeans takes corrective action, Mixedmeans shall not refund any fees paid in advance of such corrective action. Without limiting the foregoing, it is Mixedmeans policy to terminate its services for repeated violations of Mixedmeans Acceptable Use Policy. The Customer agrees that Mixedmeans is not liable for any defamatory or illegal content or any content contrary to Mixedmeans Acceptable Use Policy. The Customer warrants to indemnify Mixedmeans for any and all liability, damages, awards of costs (on an indemnity basis or otherwise), legal costs (on a solicitor-client basis) and disbursements (including barristers’ fees) arising by way of the provision of Mixedmeans Services and Systems to the Customer resulting in the perpetuation of any defamatory material, or the infringement of any third parties’ intellectual property rights, or the breach of any other law of Australia or elsewhere (as applicable) as a result of the Customer Content.

3.2.3 To comply with applicable laws and lawful governmental requests, to protect Mixedmeans Systems and Mixedmeans Customers, or to ensure the integrity and operation of Mixedmeans business and systems, Mixedmeans may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (ie. name, e-mail address, etc.), IP addressing and traffic information, usage history, and the Customer Content residing on Mixedmeans Systems.

4
FEES AND PAYMENT TERMS

4.1 The Customer agrees to pay to Mixedmeans then current set up and service fees in accordance with the Service Options and any and all costs and expenses incurred by Mixedmeans in connection with the Services provided to the Customer by Mixedmeans under this Agreement. For billing purposes, the service start date will be the date of the order. The Customer will be billed for (a) any setup fees; and (b) the annual fee for the Services at the rates and charges set out on the Mixedmeans Web site at http://www.Mixedmeans.com.au/. Henceforth, the Customer will be sent a renewal notice annually 7 days prior to the anniversary of the order. If the renewal fee is not paid by the anniversary of the order, the Services will be disabled and the Customers web content and MX records disabled without notice. Disabled Services will be deleted if the Customers account is not returned to a $0.00 balance within 30 days.

4.2 All fees shall be payable immediately on issue of any invoice for a new service, or new order placed by the Customer for renewal of an existing service. For recurring services, fees shall be payable within 7 days of issue of any invoice. All fees, including recurring fees, will be charged to the Customer’s credit card of record unless other arrangements have been specifically approved by Mixedmeans at Mixedmeans sole discretion. For billing purposes, fractions of units shall be rounded up. All charges are considered valid unless disputed within 30 days of the invoice date by submitting a billing enquiry support ticket on the Mixedmeans web site. The Customer agrees to pay all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the Services provided to the Customer, other than taxes based on Mixedmeans net income. The Customer’s failure to fully pay any fees and taxes on the applicable due date will be deemed a breach of this Agreement, justifying Mixedmeans suspension of its performance of the Services (including all e-mail and the deletion of the Customer Content) and, in Mixedmeans sole discretion, termination of this Agreement. Accounts in default are subject to an interest charge on the outstanding balance equal to the lesser of 10% per month or the maximum rate permitted by law. Any termination by Mixedmeans for the Customer’s failure to pay will not relieve the Customer from paying past due fees plus interest. In the event of collection enforcement, the Customer shall be liable for any costs associated with such collection, including, but not limited to, reasonable attorneys’ fees, court costs and collection agency fees.

5
TERM OF SERVICE

5.1 The Agreement shall remain in full force and effect until terminated by either party. Either party may terminate this Agreement for any reason by providing the other party 7 days prior notice via a cancellation support ticket submitted on the Mixedmeans web site; provided that, Mixedmeans may immediately terminate or suspend the Services and this Agreement upon written notice for the Customer’s or its users’ violation of the Acceptable Use Policy. Upon any termination of this Agreement, Mixedmeans will not refund, and the Customer is not eligible for, any remaining portion of any fees that already has been charged.

5.2 Should this Agreement be terminated for any reason, Mixedmeans will not be liable to the Customer because of such termination for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with the Customer’s business, or for any other reason whatsoever flowing from such termination. The Customer is solely responsible for procuring any new or replacement service upon termination. Any termination of this Agreement shall not relieve the Customer of any obligations to pay fees and costs accrued prior to the termination date and any other amounts owed by the Customer to Mixedmeans as provided in this Agreement. Upon termination of this Agreement, the following sections shall survive and remain in effect in accordance with their terms: Sections 5.2 and 6 to 11 inclusive.

6
RESERVATION OF RIGHTS

Mixedmeans is the exclusive owner of and retains all right, title and interest (including, but not limited to, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights thereto (collectively, “Proprietary Rights”)) to all materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Mixedmeans or its suppliers pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Mixedmeans to provide the Services to the Customer. The Customer is the exclusive owner of and retains all right, title and interest (including all Proprietary Rights) to the Customer Content. Note that Mixedmeans does not guarantee retention of the Customer Content after termination.

7
WARRANTIES AND REPRESENTATIONS

7.1 The Customer represents, warrants and covenants to Mixedmeans that: (a) the Customer Content or its use shall not violate, misappropriate or infringe any Proprietary Rights or any other personal, privacy or moral right arising under the laws of any jurisdiction of any person or entity, nor shall same constitute a libel or defamation of any person or entity; (b) the Customer Content will not contain any harmful components, including, but not limited to, viruses, trap doors, hidden sequences, hot keys, or time bombs; (c) the Customer has all right, power and authority necessary to enter into this Agreement and use the Customer Content as described herein; and (d) the Customer shall comply with all applicable laws, rules and regulations (including, but not limited to, export control, decency, privacy and intellectual property laws).

7.2 Mixedmeans exercises no control over, and accepts no responsibility for, third-party content of the information passing through Mixedmeans System, network hubs and points of presence, or the Internet. The Customer acknowledges that Mixedmeans systems (including any software and any other items used or provided by Mixedmeans in connection with any services hereunder) are provided as represented at the execution of this Agreement. Mixedmeans does not make any representations or warranties of any kind, express or implied, with respect to the performance of the services (including the DNS services therein) or Mixedmeans systems, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement or any implied warranty arising by usage of trade, course of dealing or course of performance. Mixedmeans makes no representations or warranties whatsoever that the services and Mixedmeans systems will be uninterrupted, always accessible, free of harmful components, accurate or error-free.

8
LIMITATION OF LIABILITY

Mixedmeans shall have no liability for any consequential, exemplary, special, incidental, or punitive damages even if Mixedmeans has been advised of the possibility of such damages. In no event shall Mixedmeans have any liability for unauthorised access to, or alteration, theft or destruction of information distributed or made available for distribution via the services through accident, fraudulent means or devices (including , without limitation, viruses, Trojan horses, worms, time bombs, cancelbots or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information) . The total liability of Mixedmeans to the Customer for any reason and upon any cause of action shall be limited to the amount actually paid to Mixedmeans by the Customer under this Agreement during the 12 months immediately preceding the date on which such claim arose. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The fees for the services set by Mixedmeans hereunder have been and will continue to be based upon this allocation of risk.

The Customer will have access to a variety of third party sources of content through the use of the Web site and the Internet. Mixedmeans has made no effort to verify the accuracy of suitability of any information contained in any such sources, including, without limitation, any other web site that the Customer can link to from the Web site. Accordingly Mixedmeans has no liability or responsibility whatsoever for any content provided by any other person contained on or available through the Web site. The Customer acknowledges and agrees that any access, use or reliance on any such third party content is at the Customer’s own risk. The Customer acknowledges that, except for information, products or services clearly identified as being supplied by Mixedmeans, Mixedmeans does not operate, control or endorse any information, products or services of any other person on the Web site or the Internet in any way. The Customer also acknowledges and agrees that Mixedmeans does not guarantee or warrant that files available for downloading from the Web site or through the Internet will be free of infection or viruses, worms, Trojan horses or other malicious code that may adversely effect the Customer, the Customer’s computer or computer systems or the customer’s data or files.

9
INDEMNIFICATION

The Customer will indemnify, hold harmless, and defend Mixedmeans and all employees, officers, directors and agents of Mixedmeans and any of its affiliates from and against any and all claims, suits, actions, demands or proceedings (whether threatened, asserted, or filed) and all related damages, losses, liabilities, cost and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or relating to: (a) any violation or breach by the Customer of any term, representation or warranty, or policy of this Agreement; (b) the Customer’s unlawful or improper use of the Services; (c) any damages caused to Mixedmeans Systems by the Customer Content; (d) any actual or alleged violation of any Proprietary Rights or non-proprietary rights (including, but not limited to, defamation, libel, rights of privacy or publicity) by the Customer Content.

10
ARCHIVING OF DATA

Mixedmeans will archive the Customer’s data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, Mixedmeans will restore from the last known good archive. In the event of corruption of all of Mixedmeans archives, or in the event that an old archive is used to restore data, the Customer should be prepared to upload its data to its web site. Mixedmeans will not be liable for incomplete, out-of-date, corrupt or otherwise deficient Customer data recovered from Mixedmeans backups.

11
MISCELLANEOUS

11.1 This Agreement is governed by the law applicable in the State of Victoria in Australia. The Customer and Mixedmeans agree to irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of the State of Victoria.

11.2 The Customer agrees that, unless other instructions are posted on Mixedmeans web site, any notices required to be given under this Agreement will be deemed to have been given if delivered by email or fax, or sent by certified mail return receipt requested, in accordance with the most current contact information the Customer has provided to Mixedmeans and the contact information for Mixedmeans posted on Mixedmeans web site. All notices shall be effective upon receipt, except that email and fax notices shall be effective upon transmission. Any failure by the Customer to update the Customer’s e-mail address will not invalidate this provision. The Customer is solely responsible for ensuring that its Customer’s contact details are current and correct, that its email services is operational and that it checks its emails regularly. The Customer must update its contact details via the Client Control Panel on the Mixedmeans web site as soon as possible. If Mixedmeans sends an email to the Customer’s current email address as listed in the Customer’s contact details, the Customer is deemed to have received that email and Mixedmeans is not obliged to take any further action to confirm that the Customer has received, opened and/or read the email unless the Customer promptly notifies Mixedmeans that the email was not delivered to its email address. If Mixedmeans receives an automated email non-delivery notification indicating that the Customer has not received the email that Mixedmeans has sent the Customer regarding the Services, Mixedmeans will use reasonable endeavours to attempt to contact the Customer using the other contact details the Customer submitted, including non-electronic means, but does not guarantee that Mixedmeans will be able to contact the Customer.

11.3 Words or expressions used in this clause 11.3 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or, if not so defined, then which are defined in the Trade Practices Act 1974 (Cth), have the same meaning in this clause.

For the purposes of this Agreement where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under this Agreement, the amount or consideration will not be increased on account of any GST payable on that supply.

Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as GST inclusive, does not include an amount on account of GST.

Despite any other provision in this Agreement, if Mixedmeans makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this Agreement as GST inclusive):

(a) the consideration payable or to be provided for that supply under this Agreement but for the application of this clause (GST exclusive consideration) is increased by, and the Customer must also pay to Mixedmeans, an amount equal to the GST payable by the Mixedmeans on that supply; and

(b) the amount by which the GST exclusive consideration is increased must be paid to Mixedmeans by the Customer without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.

If a payment to the Customer under this Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by the Customer, then the payment will be reduced by the amount of any input tax credit to which the Customer are entitled for that loss, cost or expense.

Mixedmeans, having regard to Part VB of the Trade Practices Act 1974 (Cth), may refund to the Customer part or all of any amount paid by the Customer under this Agreement during the New Tax System transition period, the amount of the refund to be determined in the sole discretion of Mixedmeans.

Mixedmeans will provide a tax invoice.

If the Customer objects to the amount of any refund or adjustment determined by Mixedmeans under this clause, the Customer and Mixedmeans will negotiate in good faith in an attempt to agree on the amount of the refund or adjustment. If the Customer and Mixedmeans cannot agree on the amount of the refund or adjustment, then the refund or adjustment must be determined by a person:

(a) who has at least 10 years experience as a lawyer;

(b) who is appointed by the parties but if the parties cannot agree who to appoint within 28 days after one of them notifies the other that it requires a person to be appointed for the purposes of this clause, then that person is to be nominated at the request of either of the parties by the President of the Law institute of Victoria or by the President’s nominee;

(d) who acts as an expert and not as an arbitrator;

(e) whose decision except in the case of obvious error is final and binding; and

(f) whose cost the Customer and Mixedmeans must bear equally.

Pending that person’s determination, the parties must continue to comply with this Agreement, including, without limitation, making all payments provided for under this Agreement.

Any information given to the expert by Mixedmeans including, without limitation, confidential information, is for the use of the expert only and under no circumstances (except if required by law) is the information to be disclosed.

11.4 If the Customer are entitled to obtain an Australian Business Number (ABN) under the A New Tax System (Australian Business Number) Act 1999 (Cth) the Customer:

(a) warrant that the Customer have an ABN and have provided the applicable registration number to Mixedmeans; and

(b) must:

(i) continue to have an ABN during the term of this Agreement;

(ii) quote its ABN to Mixedmeans;

(iii) advise Mixedmeans if its ABN changes or is cancelled; and

(iv) indemnify Mixedmeans for any loss or damage suffered by Mixedmeans or any tax, charge, fine, penalty or other impost which Mixedmeans incurs or becomes liable to pay, as a result of its breach of any of the warranties contained in this clause.

11.5 Increased costs

(a) To the extent that any supply by Mixedmeans under this Agreement is input taxed (input tax supply), Mixedmeans is entitled to increase:

(i) any amount expressed as payable; and

(ii) anything else to be provided,

by the Customer for that input tax supply otherwise under or in connection with this agreement (consideration for the input tax supply) by:

(iii) such amount as Mixedmeans determines in its discretion is reasonably necessary for Mixedmeans to recover from the Customer (in addition to the consideration for the input tax supply) the amount of the input tax credits in relation to acquisitions made by Mixedmeans and used by it wholly or partly in making the input tax supply, to which Mixedmeans would have been entitled had the input tax supply been a taxable supply by Mixedmeans; or

(iv) such lesser amount as Mixedmeans determines.

(b) Mixedmeans may make a determination under clause 11.5(a)(iii) above or 11.5(a)(iv) above by notice in writing to the Customer (Mixedmeans determination) and each Mixedmeans determination will be conclusive evidence of the making of the determination. The amount specified in any Mixedmeans determination must be paid by the Customer immediately on receipt of the Mixedmeans determination without objection and without any set off or deduction of any other amount payable under this Agreement.

11.6 Waiver of any provision of or right under this Agreement:

(a) must be in writing signed by the party entitled to the benefit of that provision or right; and

(b) is effective only to the extent set out in any written waiver.

11.7 In this agreement, except where the context otherwise requires:

(a) the singular includes the plural and vice versa, and a gender includes other genders;

(b) another grammatical form of a defined word or expression has a corresponding meaning;

(c) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(d) a reference to $ is to Australian currency;

(e) a reference to time is to Australian eastern standard time;

(f) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;

(g) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

(h) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re enactments or replacements of any of them;

(i) a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act;

(j) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(k) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;

(l) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;

(m) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and

(n) if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day.

If the Customer has any questions relating to this Agreement, it may submit a support ticket within the Client Control Interface.

SCHEDULE A: ACCEPTABLE USE POLICY

This Acceptable Use Policy (the “Policy”) describes the proper kinds of conduct and prohibited uses of the hosting and e-mail services (the “Services”) provided by Mixedmeans. The Policy forms part of the Agreement. This Policy is not exhaustive and Mixedmeans reserves the right to modify it at any time, effective upon posting of the modified version at http://www.Mixedmeans.com.au/legal/policies.html or such other location designated by Mixedmeans. By using Mixedmeans Services, you agree to abide by the then current version of this Policy.

Any violation of this policy may result in the suspension or termination of the services and such action as Mixedmeans deems appropriate as further described in the hosting Agreement. Any repeated violation of this policy will result in the termination of the hosting Agreement. Indirect or attempted violations of this policy, and actual or attempted violations by a third party on your behalf, shall be considered violations of the Policy by you.

GENERAL

Mixedmeans Services enable you to host and serve your Web site and all related content, including, but not limited to, programs, program scripts, e-mail, text, bulletin board postings, hypertext links, meta tags, domain names, pictures, graphics, forums, interactive media, and audio/visual materials that you or a third party (collectively, “Customer Content”) posts on your Web site or other equipment, servers, software and network of Mixedmeans (collectively, “Mixedmeans Systems”). Generally, Mixedmeans does not actively monitor, censor, or directly control any information that is stored on or transmitted over Mixedmeans Systems. Mixedmeans cannot and does not warrant, verify or guarantee the quality, accuracy, safety or integrity of your Customer Content or other materials or information that you or a third party may post or access through the Services. You are solely responsible for all of the Customer Content and your and your users’ use of Mixedmeans Services and your Web site.

NO ILLEGAL OR HARMFUL USES

Mixedmeans Services and Systems may be used only for lawful purposes. Transmission, distribution or storage of any material or any activity in violation of any applicable law or regulation, including but not limited to gambling, is strictly prohibited. The following non-exhaustive list describes the kinds of illegal or harmful conduct that are prohibited. Mixedmeans reserves the right to restrict or prohibit any and all uses or content that it determines in its sole discretion is harmful to its systems, network, reputation, good will, other Mixedmeans Customers, or any third party.

Excessive Use of Server Resources. The use of programs and scripts that cause excessive stress to servers including, without limitation, chat scripts is prohibited on shared server accounts. This is due to the resultant reduction in resources and deterioration of service for other the Customers on the same shared server. Such programs and scripts may only be used with dedicated server accounts. Additionally, excessive use and/or violation of bandwidth/storage maximums are prohibited on all web hosting accounts. Determination of excessive use is at Mixedmeans sole discretion.

Infringement. Infringement of intellectual property rights or other proprietary rights including, without limitation, material protected by copyright, trade mark, patent, trade secret or other intellectual property right used without proper authorisation. Infringement may result from the unauthorised copying and posting of pictures, photographs, logos, registered or unregistered trade marks, software, articles, musical works, and videos.

Illegal Materials. Disseminating or hosting material that is, without limitation, unlawful, obscene, harmful, invasive of privacy or publicity rights, abusive, or otherwise objectionable, under the laws of any jurisdiction.

Harmful Content. Disseminating or hosting harmful content or software including, without limitation, viruses, Trojan horses, worms, time bombs, cancelbots or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information including the Services.

Fraudulent Conduct. Offering or disseminating fraudulent goods, services, schemes, activities (ie. gambling) or promotions (ie. make money fast schemes, chain letters, and pyramid schemes); fraudulent submission or use of personal or financial information; or engaging in any practice that constitutes an unfair or deceptive trade practice.

Privacy. Collecting, using and disclosing any personally identifiable user information in violation of any applicable law and/or stated privacy policy.

MAINTENANCE OF SECURITY AND INTEGRITY

Violations of system or network security are prohibited, and may result in criminal and civil liability. Mixedmeans will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:

Hacking. Unauthorised access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorisation of the owner of the system or network.

Interception. Unauthorised monitoring of data or traffic on any network or system of Mixedmeans or any third party.

Intentional Interference. Interference with service to any user, host or network including, but not limited to, denial of service attacks, mail bombing, news bombing, other flooding techniques, deliberate attempts to overload a system and broadcast attacks.

Falsification of Origin. Forging of any TCP-IP packet header, e-mail header or any part of a message header. This prohibition does not include the use of aliases or anonymous remailers.

Avoiding System Restrictions. Using manual or electronic means to modify usage details for billing reasons or to avoid any use limitations placed on the Services such as access and storage restrictions.

NO E-MAIL ABUSES

You may not distribute, publish, send or incite unsolicited mass e-mailings, promotions, advertising, or solicitations (such as “spam”), including, without limitation, commercial advertising, informational announcements, and mail bombing. You may not use Mixedmeans mail server or a third party mail server to relay mail without the express permission of the account holder or the third party site. Posting the same or similar message to one or more newsgroups (including, but not limited to, the use of chain letters, excessive cross-postings or multiple-postings) is explicitly prohibited.

NO SERVICE BUREAUS

You may not sell, assign, rent, transfer, distribute, act as a service bureau, or grant rights in the Service to any other person without the express prior written consent of Mixedmeans.

The Customer shall at all times adhere to all applicable laws, rules, and regulations and to Mixedmeans then current Acceptable Use Policy (or such other location as Mixedmeans may specify). In particular the Customer may not utilise the Services:

(a) in connection with any tortious or actionable activity;

(b) to publish or disseminate information that:

(i) constitutes slander, libel or defamation;

(ii) publicises the personal information or likeness of a person without that person’s consent; or

(iii) otherwise violates the privacy rights of any person; or

(c) to threaten persons with bodily harm, to make harassing or abusive statements or messages, or to solicit the performance of acts or services that are illegal under applicable law;

(d) in connection with any disruptive or abusive activity;

(e) to cause denial of service attacks against Mixedmeans or other network hosts or Internet users or to otherwise degrade or impair the operation of Mixedmeans servers and facilities or the servers and facilities other network hosts or Internet users;

(f) to post messages or software programs that consume excessive CPU time or storage space;

(g) to offer mail services, mail forwarding capabilities, POP accounts or autoresponders other than for the Customer’s own account;

(h) to subvert, or assist others in subverting, the security or integrity of any Mixedmeans system, facility or equipment;

(i) to gain unauthorised access to the computer networks of Mixedmeans or any other person;

(j) to provide passwords or access codes to persons not authorised to receive such materials by the operator of the system requiring the password or access code;

(k) to:

(i) forge the signature or other identifying mark or code of any other person;

(ii) impersonate or assume the identity of any other person; or

(iii) engage in any other activity (including ‘spoofing’) to attempt to deceive or mislead other persons regarding the true identity of the Customer (excluding the use of anonymous remailers or Internet nicknames);

(l) to conduct port scans or other invasive procedures against any server (except any server for which the Customer is an authorised system administrator);

(m) to distribute, advertise or promote software or services that have the primary purpose of encouraging or facilitating unsolicited commercial email or spam;

(n) in any manner that might subject Mixedmeans to unfavourable regulatory action, subject Mixedmeans to any liability for any reason, or adversely affect Mixedmeans public image, reputation or goodwill, including, without limitation, sending or distributing sexually explicit, hateful, vulgar, racially, ethnically or otherwise objectionable materials as determined by Mixedmeans in its sole discretion; or

(o) in any other manner to interrupt or interfere with the Internet usage of other persons.

ENFORCEMENT BY Mixedmeans

Mixedmeans reserves the right, but does not assume the obligation, to investigate any violation of this Policy or misuse of Mixedmeans Systems. As described in the Hosting Agreement, Mixedmeans reserves the right and has absolute discretion to (a) enforce this Policy and the terms of the Hosting Agreement and (b) remove or disable access, screen or edit any Customer Content that violates these provisions or is otherwise objectionable. Without limitation, Mixedmeans also reserves the right to report any activity (including the disclosure of appropriate Customer information) that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Mixedmeans also may without limitation cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct or infringement of any third party’s legal rights by providing network and systems information related to allegedly illegal, harmful, infringing or objectionable content. Mixedmeans reserves all rights to identify the Customer by its IP address to third parties within the scope of the Privacy Act 1988 (Cth).

Disclaimer

To the extent permitted by law, Mixedmeans liability for breach of any implied warranty or condition, which cannot be excluded, is limited to the supply of the services again or the payment of the cost of having services supplied again.

HOSTING PRODUCT TERMS

1. The mixedmeans hosting plans are Yearly Payment option(without IP Address).Upfront payment of 12-month contract is required and is non-refundable if you terminate the service before the end of the term.
3. Customers requiring an IP Address with the hosting plan will incur a set-up fee of $50. Should an IP Address be required with the Hosting plan after the account has been provisioned, a site move fee of $135 will also be incurred.
4. Pricing of this hosting plan excludes any domain name registration charges imposed by domain name registration authorities.
5. A $3.50 account-keeping fee per mailed invoice applies to this product. This fee does not apply if payment is made by auto-debit from credit card.
6. This hosting plan supports a number of different payment gateways, however, Mixedmeans prefers and recommends either Dialect or eWay. Please contact our Technical Support department on 1800 800 099 (ext. 1) if you wish to use an alternative payment gateway provider to confirm that it is supported on this hosting plan.
7. If your web site’s data transfer exceeds the allocated amount per month, an additional fee of $0.077 per extra MB per month is charged.
8. The server space that is included with this plan is calculated by adding the monthly average of your web site storage and the monthly average of storage of all your mailboxes under this account.
9. Once your server space exceeds the allocated limit, an additional fee of $0.099 per extra MB per month is charged.
11. Hosting hosting plan customers requiring support for a database can only have their database hosted using either the Standard SQL Add-On or MySQL Add-On and additional charges will apply.
12. Customers wishing to run .NET on this hosting plan can run both ASPX files (.NET web site) and ASMX files (web services), but cannot register assemblies in the global assembly cache.
13. For security reasons, .NET code runs under a restricted trust level. Your code will not run with full trust rights.
14. The .NET Framework (v1.1) does not support Microsoft Access databases in a shared hosting environment. If you choose to enable the .NET Framework on this hosting plan, then you will not be able to use a Microsoft Access database. Should you require a database with your .NET enabled web site, then you will be required to purchase either the Standard SQL Add-On or MySQL Add-On and additional charges will apply.
15. All prices are in Australian dollars and are inclusive of GST.
16. Mixedmeans’s Standard Terms and Conditions apply. Please read our Standard Terms and Conditions carefully as they contain exclusions of liability and also include indemnities from you to Mixedmeans.